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of Courage, has hailed both Senator Norris and Senator LaFollette as outstanding men of courage in the long and noble history of the Senate. There come times, as Senator Kennedy has dramatically pointed out, when a man's conscience imposes upon what he considers to be the moral obligation to speak out at such length and with such eloquence as he can command, no matter how great the marshaled opposition to him may be, no matter what the threat of loss, no matter how remote the promise of ultimate victory. When this "still small voice" of conscience calls to a Senator from a sovereign State and he under this moral compulsion on the floor of the Senate asserts the cherished privilege of the Senate-freedom of debate--I for one would not deny him that privilege, nor would I favor a change in rule XXII which would send him home a silenced Senator to the State which sent him forth to speak for her.
In considering the proposed changes in rule XXII, we must, to paraphrase Justice Holmes, remember “what this Government has become and therefore consider well the wisdom of retaining and strengthening not only the "checksand-balances" which our Fathers formally wrote into the Constitution, against unlimited government, but also those ancillary restraints which the wisdom of the Senate wrote into its rules so many years ago. Under the Constitution each House is given the right to draw up its own rules of procedure. There is no expressed limitation on this right, but is it conceivable that either House could enact rules of procedure which ran counter to the inner spirit and philosophy of the Constitution itself?
The two most serious threats to the constitutional principle of separation of powers and to the "checks-and-balances" system which were designed to maintain that principle in the interest of freedom are today (1) the enormously increased political power and prestige of the Executive and (2) the disinclination of the Supreme Court to exercise jurisdiction in an ever-widening area of constitutional problems which it calls "political" or "nonjusticiable." In the light of these threats I submit to you that Senate rule XXII has a vital constitutional function to discharge. It is more than a simple rule of legislative procedure. The facts of contemporary political life have made it a constitutional weapon or device of the first magnitude. It is on these grounds also that I oppose its relaxation to permit even greater restrictions on freedom of debate in the Senate.
The American people in mid-20th century are sufficiently sophisticated to understand the force and power of the Executive patronage in its more, as well as in its less, subtle forms. For the time being, at least, they realistically accept it as a fact of life-a condition inevitable in the “Big Government" type of government so dreaded but never completely foreseen by the Founders of the Republic. They are aware of the pressures from the White House that go to shape up the factitious “majorities” which are said to represent the "voice of the people," before which, under the assumptions of democracy, dissident minorities must humble themselves and give way. We know of what parliamentary majorities are too often composed. We have seen them before as things of "shreds and patches.” After all, what inherent sacredness is there in a "inajority" as a "majority.” The word itself connotes no metaphysical magic. We should like to know the elements, the motivations, the temporary and uncertain alliances, the hushed bargainings behind the "majority" which give it its evanescent life. How shall these be uncovered--brought into the open naked, for what they are worth, unless, as long as there is a chance even a small chance-and history shows how often popular government has hung upon the slender thread of chance—that a single voice among the minority may pierce the veil of a politically corporate “majority," the Senate rules still bid this voice to be heard?
We need what is left of the ancient tradition of the free forum of the Senate as a check upon the new overbalance of the Executive power. With the great overdevelopment of the Executive power resulting in a vast bureaucracy itself functioning freely under its own rulemaking power little restrained by the courts, there is no longer a sufficient check-a strong enough balance in the ordinary constitutional provisions. It is precisely here that I suggest to you the renewed value and utility of the free debate privilege of the Senate. This is not the time to water down or slowly drain away that privilege. Free debate in the Senate, even with the limitations now provided in rule XXII, may well be one of the last lines of defense against an executive imbalance which threatens to destroy the Constitution itself.
For we have also witnessed in our time a withdrawal of the Supreme Court from large areas of constitutional law, a virtual abdication of its function as the final judicial interpreter of constitutional limitations. While deeply solicitous for the right to free speech of Communists, for example, and deeply concerned with the lives, the fortunes, and the sacred honor of those who invoke the fifth amendment privilege against self-incrimination, the Court in other areas is refusing to hear cases involving claimed constitutional rights by others, on the ground that the cases present "political questions" merely and the claimants are relegated to the “forum of public opinion” or to the "ballot box” since they are said to have no “standing in court." Have these people an effective forum in which to assert violations of the Constitution which impair their rights?
Let me cite one of these areas called political or nonjusticiable. Certainly since the case of Massachusetts v. Mellon and the allied case of Frothingham v. Mellon (262 U. S. 447), it has been legally impossible for a citizen-taxpayer to secure from the courts a determination of the constitutionality of a proposed expenditure of Federal taxes. The Court said the taxpayer showed no right to be heard ; and the sovereign State of Massachusetts fared no better in its contention that the proposed expenditure involved a violation of the rights reserved to the States under the 10th article of the Bill of Rights. The Court declared the questions presented were “political” and not "judicial” in character. In days to come, with this judicial trend prevailing, with the doors of the judicial forum thus closed, we may need more and more the free forum of the Senate, the Senate of old with tradition of free debate strengthened, not weakened, a Senate where free debate makes interposition against constitutional violations not a piece of nostalgia but a political reality to be reckoned with. I would oppose a relaxation of rule XXII as proposed.
Proponents of further restriction on the Senate's right of free debate make much of the abuse of the right. Any right may be abused. The possibility of the abuse of a right is the price paid for the recognition of the right. And I had thought it abundantly clear from our history that the abuse of a right is no argument for its abolition. In the long course of Supreme Court decisions in the area of civil rights it has been made clear that the fact that the right of free speech may be abused is the weakest of arguments for its curtailment. I would leave the abuses of the right of free debate in the Senate to be dealt with by the force and pressure of public opinion. I would not further restrict the right.
And I would remind the majorities which would further limit the right of free debate of minorities that many of today's majorities may find themselves among the minorities of tomorrow. Let them think carefully and cautiously about the proposals now before us lest on that tomorrow they find themselves asking in vain for the right they would today destroy.
Because then free debate is so much in keeping with the historic functions of the Senate under the Constitution as the free forum of the sovereign States; because its value and importance to our constitutionally limited government have increased in the light of what American Government has become, I would oppose any changes in rule XXII making it easier or quicker to gag free debate. And as the Supreme Court is so cautious these days about sustaining restrictions on free speech generally, because of the basic philosophy behind the concept, so am I cautious about further limiting free debate in the Senate, for free debate in the Senate is the legislative counterpart of the whole constitutional concept of free speech. It is drawn from the same sources. It is nourished by the same philosophy. It should not now be weakened or mutilated. Respectfully submitted.
STATEMENT OF HOWARD NORMAN MANTEL, ATTORNEY, BROOKLYN, N. Y., ON
SENATE RULE XXII Mr. Chairman, it is a fundamental principle of representative government that the elected majority may do what it thinks proper within constitutional limits and provided fundamental rights of the minority to be heard and protected are not violated. Under the present provisions of rule XXII, it takes only 33 Senators to prevent the overwhelming majority from closing debate on a pending matter. And for proposals to change the Senate rules, debate can be closed only upon the physical weakening of a minority Member or Members after prolonged filibuser.
No one questions the propriety of the Senate in preserving the right of debate; but debate ceases to be such if there are no effective limits thereon. By that I mean simply that when debate is not used for purposes of discussion or per
suasion, but as a means of thwarting the will of the majority, it perverts fundamental concepts of due deliberation. The Senate, traditionally, 'has not employed the technique of moving the previous question (whether, in fact, it could, is another question, beyond the purview of this statement). Instead, it prefers to debate an issue until all Senators have had their say and are content to proceed to action, that is, to vote. Nevertheless, there must be an effective means of stopping debate when discussion becomes a weapon in the hands of the few to forestall all further legislative action until the pending question is recommitted or otherwise dropped.
I feel that present rule XXII does not give fair opportunity to the majority to bring debate to a close. Paragraph (3), subsection (2) of rule XXII should be amended so that an absolute majority of the membership may close debate. This would be a considerably more restrictive requirement than under the previous-question technique of the House, wherein a majority of a quorum may move the question. That is, if 218 Members of the House are present (a quorum), 110 of them could vote the previous question--this out of a total membership of 435. Under the proposal which I recommend, it would take 49 Senators out of 96 to close debate, an absolute majority.
I further suggest that subsection (3) be amended to provide that on proposals involving changes in the Senate rules, a two-thirds vote of the chosen membership, or 64 Senators out of 96, is needed to close debate. The present requirement goes beyond any rational respect for caution and conservative philosophy.
JUNE 14, 1957. Hon. HERMAN E. TALMADGE,
Senate Office Building, Washington, D.C. DEAR SIR: The Fort Worth Chapter of Pro America is deeply concerned with the attempt of the special subcommittee of the Senate Committee on Rules and Administration to amend rule XXII so as to limit debate. Pro America represents 300 local women who are unanimously agreed that this new amendment not only is unconstitutional because it interferes with freedom of speech, but it also destroys the only avenue by which a minority group can express itself.
Not having a list of those on this subcommittee, I address you with the hope that you will acquaint the other members of our feeling about this amendment. Sincerely,
Mrs. R. R. LOWDON, Secretary, Fort Worth Chapter of Pro America,
MONTCLAIR, N. J., July 12, 1957. DEAR SENATOR TALMADGE: As the new president of New Jersey Pro-America, I have received various letters, and communications from the outgoing president, Mrs. Horace A. Woodward. Your letter regarding the hearings on the proposed amendments to rule XXII of the Standing Rules of the Senate was among them.
We are fully in accord with the sentiments expressed by our national president, Mrs. Mary Elizabeth Snow, at one of the hearings. She has spoken for ProAmerica chapters throughout the country.
Thank you for the good work which you are doing for all of us who believe in the basic freedoms under our constitutional system. It is my hope that free debate, and the rights of the States may be preserved. But unless Congress reasserts its rights and fulfills its obligations, I fail to see how that can be done so long as we have on the highest Court in the land, men who are determined to rewrite our laws and change our form of government. With best wishes to you, I am, Sincerely,
ENID H. GRISWOLD. ROANOKE COLLEGE,
Salem, Va., May 22, 1957.
Washington, D. 0.
provision in all the procedures of the Senate. As long as there is provision for unlimited debate in the Senate there is no chance for revolution or suppression of ideas in America.
If a disillusioned group of Americans can find one Senator who will champion their views, nothing can be rushed or covered up. That was demonstrated in the Dr. Townsend proposals in old-age pensions some years ago. And none or only one proposal on which there was a so-called filibuster has ever later passed into law.
I have taught political science here for over 30 years, and have watched this matter of the Senate debate with real interest. Usually when men rush something they have something they wish to coverup. As Gamaliel said in the case of Jesus, if he is the Messiah he will succeed, if he is not he will go the way of all the other imposters. So let him have his time. Respectfully,
JULIUS F. PRUFER, Associate Professor of Political Science and Alumni Director.
Chicago, Ill., June 18, 1957. Date: June 17, 1957. From: Staff. To: Committee on Rules and Administration, United States Senate. Re: Proposed change of Senate Rule XXII to limit debate. Subject: Second statement of staff on this change.
DEAR SIR: The staff of the Realpolitical Institute unanimously declares the proposal to limit debate in the Senate of the United States as against the grain of the development of this great Republic. The Communist conspiracy has proved that we need, not less, but more, freedom of debate in the United States Senate.
The rights of our American citizens were won on the battlefield by men who shed their blood for freedom. Some of you sitting in this room today are descendants of those freedom fighters. Are you willing to abrogate those rights, to betray your ancestors without a thought for what you are surrendering?
It is commonplace that it always is the liberal wing which is conspiring to reduce the freedoms won by the suffering of our forefathers. No less an authority than Leon Trotsky wrote, in his History of the Russian Revolution that liberal principles cannot be enforced without the police power.
As another step toward the police state in America, the proposal is made to limit debate. This is subversion at its camouflaged best. Nations are destroyed when their freedoms are chipped away one by one, until one day they wake up and see the Communist soldier standing on guard outside the window of their homes.
The reason for the proposal to limit debate is a simple one. The liberals feel that "reactionaries,” that is, Americans who respect the freedoms of their constituents, are taking up too much time on the floor of the Senate to talk about the rights of free Americans. They want to limit this time so that the liberals will have more time to talk about lending money to the Communist nations of Poland, Yugoslavia, and Hungary, more time to plead for the recognition of Red China, more time to gloss over the sufferings of American prisoners in Red Chinese concentration camps. The Realpolitical Institute stands firmly against the proposal to limit debate.
EUSTICE MULLINS, Director.
PASADENA, CALIF., July 12, 1957. Hon. HERMAN E. TALMADGE,
Senate Office Building, Washington, D.O. DEAR SENATOR TALMADGE: Please excuse this belated answer to your general letter of May 10, 1957, where you addressed me as director of the Church League of America at its headquarters in Evanston, Ill., asking for an expression concerning the limitation of debate in the Senate, rule XXII.
While head of the church league (a tax-exempt organization) I was careful about expressing opinions as to legislation which might be construed as lobbying. But now I have retired and am free from such restraint.
I believe that what is known as the filibuster (or rights of filibuster) is a good thing and should be used more than it is for I believe that we could do with a lot less legislation. If more bills were talked to death it might be a good thing for the country.
But the important point is that it gives a certain protection to certain sections of the country whose problems are not understood by other sections and who otherwise would become the victims of ruthless pressure from heavily concentrated political blocs such as that concentrated in cities, particularly New York City.
Consequently I am in favor of the Senate retaining its traditional privilege of extended debate on issues that have organic substance sufficient to arouse such debate. Truly yours,
RESOLUTION Whereas Senate rule XXII has been in effect in the United States Senate since the birth of this Nation, and said rule permits unlimited debate, which is a fundamental safeguard against too hastily considered legislation; and
Whereas that particular organization, more popularly known as the Sons of the American Revolution, is, in all probability, one of the most, if not the most, patriotic organization in the United States, that said organization was founded and exists totally and completely as a result of the unquestionable loyalty and patriotism of the forefathers of the individual members of Sons of the American Revolution, to the United States of America, and
Whereas the Sons of the American Revolution are indeed proud and honored to play an active role in any undertaking whatsoever necessary to preserve the freedom, liberties, privileges, immunities, and individual rights which their forefathers so valiantly fought and died for; and
Whereas it has become all too obvious that the individuals, or groups of individuals, who have enjoyed these rights and freedoms most, have done the least to preserve them or the democratic form of government which our forefathers so stanchly supported on the field of battle in the years 1775–81; and
Whereas instead of preserving those inalienable rights of individuals, and those rights guaranteed to the several States of these United States by the Constitution of this Nation, certain individuals and minority groups of individuals, motivated by selfish desires such as political and monetary gain, have little by little caused the abolition of these rights and have dictated their own selfish and inconsiderate creeds as so-called laws for this Nation to be governed by; and
Whereas it is all too apparent, and appalling, that the education of these minority groups and individuals, concerning the history of the greatest Nation on earth, the United States of America, has been sadly neglected, and further that these people have no interest whatsoever in the future domestic tranquillity of our Nation: Now, therefore, be it
Resolved by the Tallahassee, Fla., Chapter of the Sons of the American Revolution, That Senate rule XXII, which said rule embraces the filibuster privilege on the floor of the United States Senate, be retained in its exact present form, and that no changes whatsoever be made concerning said rule, and that the secretary of said Tallahassee Chapter of the Sons of the American Revolution is hereby directed to transmit forthwith a true copy of this resolution to each of the following congressional representatives : Senator Herman E. Talmadge
Senator George A. Smathers Senator Richard B. Russell
Representative Robert L. F. Sikes Senator Spessard L. Holland
DAVID A. AVANT, Jr., President. Attested by:
LESTER PATTERSON, Secretary-Treasurer. TALLAHASSEE, FLA., June 28, 1957.
BANNER COUNCIL, No. 67,
Inwood, Long Island, June 25, 1957. Senator HERMAN E. TALMADGE,
United States Senate, Washington, D.O. DEAR SENATOR TALMADGE: We as an American organization are against the bills pending in the Senate to change Senate rule XXII relating to limitation